Health claims regulation already posing potential risk for industry

As of the 19th of January 2010 ‘nutrition claims’ such as low GI, Isotonic and hypotonic are under threat by enforcement bodies throughout the EU. For those in the weight management or sports nutrition market, labelling and other forms of commercial communication using such claims could be removed by enforcement agencies.

Under the terms of the Nutrition and Health Claims Regulation (EC No 1924/2006) those claims not currently contained within the 24 approved claims in the Annex (Article 8 ) cannot legally be maintained. The Annex of the regulation provides a list of specific nutrition claims such as ‘Low energy’ or ‘Low fat’ and importantly unlike functional claims it contains the conditions of use such as how many calories constitute a low energy claim.

According to Dr Mark J. Tallon Principle at UK consultancy Nutrisciences, the health claims annex may be already enforceable unlike those claims covered by article 13(1)(a) of the regulation relating to generic health claims. Tallon said, ‘transitional allowances are still clearly in existence for functional claims for a few reasons, including the lack of a comprehensive adoption of the community list referred to in article 13(3) and the failure of EFSA to meet its own responsibilities regarding the adoption of nutrient profiles. For claims already listed in the Annex conditions of use (a form of nutrient profiling) are already in place; as such it is possible nutrition claims in use throughout the EU not listed in the Annex are illegal.

According to many within the industry there is still concern over a lack or real guidance from EFSA regarding what is, and what is not possible to implement from the regulation. The issue maybe a legal minefield and for those SME’s throughout the EU and guidance from their member state authorities will be vital to address any challenges to their nutrition claims.

Tallon commented that his contact with enforcement bodies in the UK over past weeks lead him to expect guidance on such issues to be forthcoming this or early next month. He said, trading standards and LACORS (body which provides guidance and good practice for local authority regulatory services) are currently in the process of developing guidance for local enforcement agencies, I expect the guidance to take a pragmatic approach simply because clarification from the EC has been less than transparent. He also says those in charge of enforcement are acutely aware of the concern of these regulation and the potential impact on trade.

Although early in 2010 the impact of NHCR comes closer to implementation, industry stakeholders are under increasing pressure to consider issues of compliance. Dr Tallon was keen to highlight that industry has some breathing space thanks to transition periods and urged food industry members to remain positive, and to keep in close contact with the likes of the Food Standards Agency (FSA) or similar bodies throughout the EU whom should be able to provide clarity and guidance in relation to implementation of NHCR when it becomes available.